The staff and their souls

he Economist
October 10, 2014

http://www.economist.com/blogs/erasmus/2014/10/religion-employment-and-teaching

ACROSS the Western world, religious organisations have fought a hard and mostly successful battle to retain the right to "discriminate" when choosing their own priests, rabbis and imams. And that seems reasonable enough. Something peculiar would be going on if say, a Christian church were obliged, under equality legislation, to admit to the priesthood a person who professed either atheism or some other religion.

But the number of jobs over which religious bodies have some influence goes far beyond the ranks of clerics or prayer leaders. There are church-based charities and foundations. There are jobs like hospital chaplaincies where the employer is secular but appointments are subject to church vetting. There are university faculties, indeed entire universities, which are religious foundations. And across western Europe, churches have an influence over the education of children which is far out of proportion to the number of people who actually attend services. In Germany, more than 1m jobs are in the gift of the Protestant or Catholic churches, as the European Court of Human Rights (ECHR) noted when considering a religious employment case.

On the face of things, the further you get from narrowly defined clerical institutions and posts, the harder it would seem to justify "discrimination" and the scrutiny of employees' beliefs and private lives—something which would not be tolerated in any other walk of life. At any rate, that's what secularists would strongly argue. 

But the most recent high-profile court cases on both sides of the Atlantic have tended to vindicate religious groups. In 2012 the American Supreme Court rejected a complaint of unfair dismissal lodged by a teacher at a Lutheran school, on grounds that she was technically a "minister" and therefore serving at the church's pleasure. Two landmark German cases considered by the ECHR were about employees of religious institutions who were laid off because of extra-marital affairs. The court upheld the complaint of an organist at a famous cathedral, but rejected that of a public-relations officer for the Mormons. In yet another case, the ECHR (in a split vote) rejected the complaint of a Spanish retired teacher and ex-priest who was fired because he married and joined a campaign against compulsory celibacy for priests.

Religious tests for teaching jobs will always be an especially sensitive area, especially in places like England where one-third of all schools are faith-based: mostly Anglican or Catholic, with a handful of Jewish and an increasing number of Muslim establishments. Religious schools insist they cannot maintain their "ethos" without scrutinising the faith and indeed private behaviour of their staff; teachers who happen not to be religious complain that their job prospects are limited.

In some ways, recent changes in British legislation have entrenched the right of faith schools to apply religious tests to their staff. Until recently there were two main types of faith school in England and Wales: voluntary-aided, under the control of a church, and voluntary-controlled, where responsibility is shared with a local authority. In the first category, all teaching jobs can be religiously-tested, while in the second up to one-fifth of the teaching posts may be subject to religious scrutiny. A change in the law in 2006 made it possible for voluntary-controlled institutions to insist on religious testing for the head teacher. A new and fast-growing category of school, the independent academy, has an even freer hand in selecting both staff and curriculum.

How does all this look in the light of European principles: those of the 28-member European Union or the 47-member Council of Europe, of which the ECHR is an organ? At first glance the European Union directive on equality in employment, issued in 2000, seems pretty generous in the way it allows religious groups and their offshoots to practise discrimination and watch the behaviour of their staff. It allows member states to keep existing laws in this area and to pass new laws that entrench existing practice. It also says religious employers can expect "individuals working for them to act in good faith and with loyalty to the organisation's ethos."

Still Tom Heys, an employment lawyer at the London firm of Lewis Silkin, thinks the British exceptions my be even more generous than EU law pemits. "It could be argued that schools that apply blanket testing at all levels of teaching are going too far, because they could still maintain their ethos without religiously vetting every single post," he says. 

On similar grounds, Britain's National Secular Society (NSS) has asked the European Commission to investigate whether British law grants too wide a religious exception. Stephen Evans, campaign director of the NSS, says the British anomaly was highlighted by a case that came to light last month of an English head teacher who had helped to turn around a "failing" Catholic primary school—but faced dismissal because he was not himself Catholic.

But in one part of the United Kingdom, an appeal to EU law will not be much use. At the behest of Britain and the locally interested parties, the EU equality directive explicitly excludes the religiously divided school system in Northern Ireland, where all teachers at Catholic nursery and primary schools need to have (or be willing to get) a certificate showing that they are qualified to teach religion from a Catholic point of view. At the end of 2012, slightly more than half the vacancies for primary school teachers in Northern Ireland carried this requirement.

Last year the authority which controls Northern Ireland's Catholic schools made what it viewed as a generous gesture; it said teachers who were looking for a new job could work in Catholic schools without a certificate, if they were willing to acquire one within three years.

A tiny concession by most people's lights, but it does illustrate an important political reality. If Europe's religious organisations want to keep some of the influence they now wield over education, and over society as a whole, they will need to learn to make tactical retreats, rather than insist on every inherited privilege and perk.